CHAPTER III.

THE REGULAR AND AUXILIARY FORCES.

The Regular Forces.

Definition. The regular forces, as defined by the Army Act, 1881, consist of such officers and soldiers who by their commission, term of enlistment, or otherwise are liable to render continuous service to his Majesty in any part of the world, including the Royal Marines, his Majesty's Indian forces, the Royal Malta Artillery, and the reserve forces (comprising the army reserve and the militia reserve) (a) when subject to military law. In addition to these, certain troops are raised by order of his Majesty beyond the limits of the United Kingdom or of India, (b) and are maintained under the authority of the Colonial Office or of the Foreign Office. These would come under the above definition in cases when, by the terms of their enlistment or otherwise, they are liable to serve in any part of the world, and in any case they are subject to the regulations contained in the Army Act, 1881. (c)

Prior to the declaration of war with Germany in August, 1914, the regular army at home numbered 121,000 men of all ranks and arms, the regular army abroad 117,000 men (viz. white troops in India, Egypt, S. Africa, and elsewhere) whilst the army reserve numbered 146,000 men (cc).

Maintenance of a Standing Army.-Prior to the revolution

(a) 44 & 45 Vict. c. 58, s. 190 (8) (9); 58 & 59 Vict. c. 7, s. 9. (b) As to such troops being subject to military law see 44 & 45 Vict. c. 58, ss. 175 (4), 176 (3).

(c) Ib. s. 177.

(cc) See the speech of the secretary of state for war (The Times, 11th Mar., 1914). The Indian army appears to comprise 77,500 British, and 200,000 Native troops. In addition to these there must now be computed the regular forces (known as Lord Kitchener's army) authorized by Parliament since August, 1914, for the purposes of the war with Germany, which comprise 2,000,000 men. The Auxiliary or Territorial force numbered 266,000 men prior to the outbreak of the war.

of 1688 and the subsequent recognition by Parliament of a regular standing army upon a legal footing, there had been two legal kinds of military forces at the disposal of the Crown, and these were (1) the old feudal array, resulting out of the tenures by military service; (2) the old train bands, which became known as the militia during the reign of Charles I.

The feudal array declined with the commutation of military service into money payments, and the prerogative of pressing was frequently resorted to for the purpose of obtaining men for military service. Sometimes also contracts were entered into by the nobles with the Crown for the supply of voluntary recruits, as in the French wars of Henry III. and Edward II. Pressing was finally declared illegal by the 16 Car. I. c. 28, and the old feudal system of obtaining troops fell entirely into disuse when the feudal tenures were abolished in 1661. (d)

The train bands, or militia, could legally be used for domestic or defensive purposes only, and could not be sent abroad. (e) Originally these troops were under the supervision of the sheriffs, who were replaced by the lords lieutenants in the reign of Mary. It was the control of this body which formed one of the chief causes of dissension between Charles I. and the Long Parliament, but after the restoration it was enacted that "the militia and all other forces by sea and land were to be under the sole government and command of the king." (f)

A force of guards to the sovereign was maintained by Charles II. with Parliamentary sanction, and James II. increased their number to 30,000 on his own authority. (g) Subsequently these guards and garrisons were voted annually by Parliament till the beginning of the last century, since when the guards have been continued as portion of the regular army. (h)

Parliament had always denied the right of the Crown to maintain on its own authority a standing army in time of peace as being a menace to the country and an aid to despotism, and whether the question was the unfettered control of the militia, as in the reign of Charles I., or the unauthorized additions of James to the guards and garrisons legally allowed him, the principle at stake was the same throughout. This

(e) See 16 Car. I. c. 28.
(g) Steph. Comm., ii. 598.

(d) 12 Car. II. c. 24.
(f) 13 Car. II. st. 1, c. 6.
(h) See Clode, Mil. and Mart. Law, p. 5

question was finally disposed of by the Bill of Rights, 1688, (1) which declared "that the raising or keeping a standing army within the kingdom in times of peace, unless it be with consent of Parliament, is against law."

From 1689 to the present day the regular standing army has been maintained on a legal footing by means of annual Acts known down to 1881 as Mutiny Acts, and since then as Army Annual Acts.

The Annual Army Act performs two functions: (1) The preamble authorizes the maintenance and limits the number of the forces to be raised in each year "for the safety of the United Kingdom and the defence of the possessions of his Majesty's crown, including those to be employed at the depôts in the United Kingdom for the training of recruits for service at home and abroad, but exclusive of the numbers actually serving within his Majesty's Indian possessions." (k) The preamble also recites the necessity for the employment of a force of marines, without, however, limiting their number. (7) Thus it provides the statutory authority required by the Bill of Rights for the maintenance of a standing army. (2) It re-enacts annually, and sometimes adds new clauses or makes amendment to, the Army Act, 1881, which with the regulations made thereunder forms the code of military law for the discipline of the forces authorized to be raised, and all other forces to which the Army Act, 1881, applies. Thus it provides the statutory authority for the exercise of a special code of military law in time of peace, rendered necessary by the terms of Magna Carta, the Petition of Right, and the Bill of Rights.

It may be noted that except in the case of the compulsory militia (presently noticed), which is not now resorted to, the Crown has no power to compel enlistment in time of peace. At common law, however, the Crown is entitled to the services of every man capable of bearing arms, in case of sudden invasion or dangerous rebellion. (m)

(i) 1 Will. & Mary, sess. 2, c. 2.

(k) The number so authorized by the Army Act, 1914, is 186,400 (4 Geo. V. c. 2). To these must now be added the extra vote for 2,000,000 men for the war with Germany. See also p. 358, ante.

(1) The marines are not apparently included in the number actually authorized by the Act. See s. 2 (3) of the Army Annual Act, 1914. (m) Broadfoot's Case (1743), Fost. 154.

Entry on Service.-Officers' commissions were formerly issued by the Crown under sign manual, but by the 25 & 26 Vict. c. 4, his Majesty was empowered to direct by Order in Council that they should in future be issued under the signature of the commander-in-chief (whose duties have now devolved upon the Army Council) (n) and a principal secretary of state, and in the case of the marines under the signature of the Lords Commissioners of the Admiralty, power being reserved to his Majesty to issue any commissions under the sign manual in such cases as his Majesty may think fit.

Officers in the army hold their commissions durante bene placito, and are liable to be dismissed at any moment without cause assigned. The court has therefore no jurisdiction to inquire into the circumstances of the dismissal on Petition of Right or any other proceeding for wrongful dismissal. (0) The same principle would, it seems, apply to all non-commissioned officers and men in the army or navy.

The principal points with regard to the enlistment and term of service for soldiers under the Army Act are as follows:

The enlistment of a soldier in the regular forces is effected by the recruiting officer delivering to the intending recruit a notice in the form authorized by the secretary of state, stating the general requirements of attestation, and the general conditions of the contract to be entered into, and requiring him to attend before a justice of the peace, either forthwith or at the time and place named in the notice. (p) On appearance before the justice of the peace, if the intending recruit assents to be enlisted, the questions in the attestation paper are read over to him and his answers taken down. Enlistment is completed by the intending recruit signing the declaration attached to the attestation paper, and taking the oath of allegiance contained in the paper. (q) After enlistment a recruit may at any time within three months of the signing of the attestation paper purchase his discharge on payment of the sum of £10 for the use of his Majesty, provided no proclamation has been issued requiring soldiers entitled to be

(n) The office of commander-in-chief has now been abolished, and the statutory powers formerly exercised by him are transferred to the Army Council by statute. (2) In re Tufnell (1876), 3 Ch. D. 164. (q) Ib. s. 80 (2) (3) (4).

(p) 44 & 45 Vict. c. 58, s. 80 (1).

transferred to the reserve to remain in any service, in which case his discharge may be postponed during that period. (r)

The term of original enlistment is for twelve years, or for such less period as his Majesty may fix, but not for any longer period; and the enlistment may be either for the whole period in army service, or for such portion in army service and the rest in the reserve as the secretary of state may from time to time fix. (8) The secretary of state has power to make regulations enabling a soldier to vary the conditions of service under his original enlistment as to the period in army service and with the reserve. (t)

Until the changes introduced by the then secretary of state for war (Mr. Arnold Foster) in 1904, it was the practice to enlist the whole army primarily for three years' service with the colours (in army service). (u) The term is now seven years with the colours, and five years in the reserve. (v)

After the expiration of nine years from the date of his original enlistment the soldier may, with the assent of the competent military authority, extend his term of service for such term as will make up twenty-one years. (x)

Provisions are contained in the Act enabling his Majesty to prolong the term of service for the period of twelve months of any soldier who becomes entitled to his discharge whilst on service beyond the seas, or while a state of war exists, or while soldiers in the reserve are required by proclamation to continue in or re-enter upon army service; and while a state of war exists a soldier who becomes entitled to be transferred into the reserve may be detained in army service during the same period. (y)

In time of imminent national danger or great emergency his Majesty in Council may, by proclamation, the occasion being first communicated to Parliament, if then sitting, or declared by the proclamation if not sitting, continue soldiers

(r) 44 & 45 Vict. c. 58, s. 81.

(t) Ib. s. 78; 63 Vict. c. 5, s. 4.

(8) Ib. ss. 76, 77.

(u) See memorandum of the secretary of state for war published in the Times, the 16th of July, 1904. As to the changes introduced under the new scheme see post, p. 390.

(v) See speech of the secretary of state for war (The Times, 11th Mar., 1914.

(x) 44 & 45 Vict. c. 58, s. 84; and see as to continuance in service after twenty-one years, ib. s. 85.

(y) 44 & 45 Vict. c. 58, s. 87; 45 & 46 Vict. c. 7, s. 4 (2).